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May 11, 2005

Reasons for rooting for criminal justice federalism

As detailed in this AP story, the biggest criminal justice decision still percolating at the Supreme Court is in the medical marijuana case of Ashcroft v. Raich (lots of details here and here). Though the post-argument buzz was that SCOTUS seemed unlikely in Raich to declare significant limits on broad federal criminal power, I continue to hope that the so-called "federalism revolution" will come to criminal law. This is because it seems state legislators are much better than members of Congress at developing balanced sentencing policies and are not simply concerned with get-tough political rhetoric.

Today the evidence comes from Connecticut: as detailed in news accounts here and here, "state lawmakers, worried about the racial makeup in Connecticut's prisons, moved closer than ever Tuesday toward equalizing Connecticut's mandatory sentences for crack and powder cocaine convictions." Significantly, in the Connecticut legislative debate, a proposal was put forward to toughen powder cocaine sentences, but the bill which passed instead equalizes punishments at the current level for powder offenses. As explained in the AP story about the bill, "legislators who represent city districts where crack is more prevalent than powder cocaine said the change in law is necessary to give young people another chance at life and avoid prison time."

Contrast this state sentencing development with what is transpiring in the federal system, where there are bills moving forward in the House which seek to increase sentence lengths and create new mandatory minimums, even though the federal sentencing system already provides for extremely long sentences. Though I remain hopeful the Senate may provide some brake on the continued expansion of severe federal criminal laws (consider the statements noted here by Republican senators during AG Gonzales confirmation hearing), there seems to be little political will to seriously reconsider the "tough-on-crime" philosophy and the harsh sentencing provisions that have swelled our federal prison population over the last two decades. At least at the federal level, my hopes for a "new right" on criminal sentencing issues may be fading.

Of course, as detailed by this story from Alabama about a prison task force exploring ways for the state to deal with "Alabama's chronically overcrowded prison system," fiscal realities are perhaps what truly accounts for the different federal-state approaches to criminal justice issues. But that reality only reinforces the fact that states and localities are better able to understand and respond to the true social and economic trade-offs that are inherent in any criminal justice reforms. Or put more simply, because most crime is inherently a local concern, bringing the "federalism revolution" to criminal law would seem to make a lot of sense.

Comments

Prof. Berman, here is a link to the CT bill:
http://www.cga.ct.gov/2005/tob/h/2005HB-06635-R01-HB.htm
The summary states:

This bill eliminates the disparity in the minimum amount of crack and powder cocaine that a person must possess to be guilty of selling or manufacturing, distributing, prescribing, compounding, transporting, or possessing cocaine with intent to sell. It accomplishes this by increasing the minimum amount of crack cocaine from one-half gram to one ounce, the current minimum for powder cocaine.